CEO 83-30 -- June 16, 1983

CONFLICT OF INTEREST

COUNTY HEALTH DEPARTMENT DIRECTOR WORKING FOR PARTNERSHIP CONTRACTING WITH COUNTY SHERIFF'S OFFICE

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were the director of a county health and medical department to be employed by a partnership, if that partnership were to contract with the county sheriff's office to provide psychological testing. As the sheriff's office and the health department are separate agencies under the Code of Ethics, and as the subject employee has no control over purchases made by the sheriff's office, neither Section 112.313(7)(a), nor Section 112.313(3), Florida Statutes, would apply.

QUESTION:

Would a prohibited conflict of interest be created were the director of a county health and medical department to be employed by a partnership, if that partnership were to contract with the county sheriff's office to provide psychological testing?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Robert P. Kelley is Director of the Broward County Health and Medical Department. You also advise that he is an administrator, but not a partner, of a partnership consisting of a group of psychiatrists, psychologists, neurologists, and other professionals. You advise that this partnership may enter into an agreement with the County Sheriff's Office to provide computerized psychological testing for the Sheriff's Personnel Department. As Director of the Health and Medical Department, the subject employee has no control over decisions made by the County Sheriff's Office, which functions independently concerning the purchase of supplies and equipment and the selection of personnel. Section 30.53, Florida Statutes.

Finally, you advise that although the subject employee is not a partner in this partnership, his wife indirectly has a financial interest in the partnership. She owns a corporation, of which the employee, her husband, is secretary-treasurer; this corporation is a one-third partner in a second partnership, which in turn is a one- third partner in the partnership which seeks to do business with the Sheriff's Office.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1981).]

The first portion of this section prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with his agency. We find this prohibition to be inapplicable since the partnership is seeking to do business with the Sheriff's Office rather than with the County Health and Medical Department. As the term "agency" is defined in Section 112.312(2), the Sheriff's Office clearly is a separate "agency" from the Health and Medical Department for purposes of the Code of Ethics.

In addition, we find inapplicable the second part of Section 112.313(7)(a), which prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. As the Sheriff's Office and the Health Department are separate agencies, and as the subject employee has no control over purchases made by the Sheriff's Office, we foresee no impediment to his part-time employment with the partnership, so long as his private responsibilities are carried out while he is off-duty or on leave from his public employment.

In addition, the Code of Ethics provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits an employee of a political subdivision from acting in a private capacity to sell any goods or services to any agency of the political subdivision. In our view we need not decide whether the subject employee would be acting in a private capacity to sell services to the Sheriff's Office by virtue of any services he may provide under the contract between the partnership and the Sheriff's Office, because he has no responsibility over the Sheriff's Office or any purchases made by that Office. In a number of previous opinions we have advised that Section 112.313(3) would not prohibit a member of a subordinate board or an employee of a political subdivision from selling services to agencies of the political subdivision other than his agency, so long as that individual is not responsible in any manner for the approval of or the giving of advice or recommendations as to the purchase of services. See CEO's 82-42, 81-66, 81-29, and 76-10, for examples. We find that principle to be equally applicable to the situation here.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Director of the County Health and Medical Department to work as an administrator of a partnership if that partnership were to contract for psychological testing services with the County Sheriff's Office.